In re the Arbitration between Gosschalk & Otto Gerdau Co.

275 A.D.2d 754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 12, 1949
• Status: Published

Opinion

Per Curiam.

This appeal involves the arbitration of disputes arising out of a contract for the sale of a quantity of pepper.

The Special Term granted the respondents’ application to vacate the arbitration award for alleged misconduct of the arbitrators and denied the appellant’s cross motion for confirmation. The appellant, however, appeals from the order only insofar as it provides for vacatur of the award.

We think that the order should be reversed so far as appealed from and the award reinstated. The issues as to the alleged breach of contract and the amount of damages were properly for the determination of the arbitrators and the arbitration committee under the contract and rules of the American Spice Trade Association. These rules provide for the right to appeal any decision of the arbitrators to the Arbitration Committee of the Association. In our opinion any error of the arbitrators in refusing to hear the respondents’ witness and conducting an independent inquiry into market conditions was cured when the arbitration committee on appeal from the arbitrators’ decision took the respondents’ proof on the subject of market value.

While the statute provides for confirmation on a motion for an order to confirm an arbitration award unless the same is vacated, modified or corrected (Civ. Prac. Act, § 1461), we are not at liberty to direct confirmation in the circumstances of this case despite reversal of so much of the order as vacated the award. The whole order was appealable under the present statute (Civ. Prac. Act, § 1467). The appellant, however, has failed to appeal from the portion of the order denying confirmation. The notice of appeal expressly limits our review to so much of the order as vacated the award. Accordingly, this court may not direct confirmation of the award with the unappealed order of Special Term denying such relief outstanding.

The appeal, however, should not be dismissed, as the respondents contend. The reversal of the order vacating the award will have the effect of reinstatement, and the award may stand even though not confirmed.

The order should be reversed, so far as appealed from, with $20 costs and disbursements.

Glennon, J. P., Dore, Cohn, Callahan and Shientag, JJ., concur.

Order, so far as appealed from, unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. Settle order on notice.